HIGH COURT OF LESOTHO
by the Honourable Mr Justice WCM Maqutu on the 22nd day of August,
case accused, on the 1st August 2000, came before me summarily
charged with the following crimes:-
upon or about the 20th August 1999 and at or near LIKILENG FOOTBALL
GROUND in the district of Butha Buthe, the said accused did
unlawfully and intentionally kill MOLEFI JACOB KHOLOKHOLO.
CONTRAVENTION OF SECTION 3(2) (a) & (b) OF THE INTERNAL SECURITY
(ARMS AND AMMUNITION) ACT 1966
upon or about the 20th day of August 1999 and at or near LIKILENG
FOOTBALL GROUND in the district of Butha-Buthe the said accused did
unlawfully and intentionally have in his possession a firearm to wit:
a 9mm X 19mm TANFOLIO serial numbers, A B20052 without a valid
firearm certificate at the time; and did thereby contravene the
provisions of the aforesaid Act.
charges the accused pleaded not guilty.
called seven witnesses who gave swom testimony while the accused
(duly swom) was the only witness for the Defence. Both the accused
and the deceased (the late Colonel Kholokholo) were policemen. All
the witnesses in this case except one were policemen. The deceased
was the Officer Commanding Butha Buthe while the accused was a
policeman of junior rank (trooper) who was serving in the Butha Buthe
district together with many other policemen under the deceased.
Maime who was the first Crown Witness (PW1) duly swom told the court
that he knows the accused and the deceased (the late Colonel
Kholokholo). On the 20th August, 1999, PW1 had attended a public
meeting (pitso) that was being addressed by the Prime Minister. At
about 1 p.m. the deceased (Colonel Kholokholo) went behind the tent
in which the Prime Minister and his entourage were sitting. He called
PW1 and asked him why he did not report himself to him on arrival.
Before PW1 could reply, he noticed accused walking towards deceased
heard two gun reports. PW1 felt something hitting him on the left
side. PW1 says all this had taken him by surprise, he saw deceased
fall to the ground. Then he saw accused pointing a firearm at the
deceased and firing three times at deceased who had fallen to the
ground. Accused had been very close to the deceased. Although PW1 was
very frightened, he got behind accused and held both arms of the
accused against accused's body and the gun fell to the ground.
firearm that had fallen to the ground was picked up by Senior
Superintendent Tsilo. The police conveyed deceased to hospital. There
was a person who helped PW1 put the accused into the back of the van
that conveyed him to the charge office.
added that before the deceased fell, deceased had said what is
happening to him. Accused had then said "Justice has not been
done, he has expelled me from work", when he asked him why he is
firing at the deceased. Accused then asked them to take him to the
police to surrender. Under cross-examination PW1 said in his report
he never said deceased had said what was happening to him nor did PW1
write in his report that accused had said Justice had not been done.
PW1 admitted he had written his report on the day deceased was shot.
PW1 said he was confused due to the trauma he had suffered when he
saw deceased shot. PW1 said it is not easy to remember things
immediately after their occurrence. PW1 said he only knew accused was
a policeman in Butha Buthe and did not know of his traffic accident
that affected his behaviour. When it was put to him that accused had
a black-out and was acting as he did due to automatism, PW1 said he
was not a medical doctor.
second Witness (PW2) was Major Tsilo who was stationed in Butha Buthe
at the time holding the rank of Superintendent. PW2 says he had seen
deceased coming in his direction, he heard a gun report and saw
deceased fall and realised someone was firing. PW2 ran away and hid
behind the landrover to whose occupant he had been talking. When PW2
looked again to where the deceased had fallen, he realised that this
person he had seen earlier was firing a number of times at deceased
who was still lying prostrate on the ground. PW2 identified the man
who shot the deceased as the accused because towards the end he was
also told that person was Marabe. PW2 grabbed the accused's firearm
from the accused and handed it to a policeman. Accused was rushed to
the police station as the public wanted to assault the accused. PW2
and other policemen remained calming the crowd while deceased was
rushed to hospital.
cross-examination PW2 said deceased was seven paces from him, walking
towards PW2 as if he was going to give PW2 instructions when he was
shot. Accused was walking alone but there were people beside him. PW2
did not see PW1 until he got hold of the accused. He could not commit
himself about the presence of PW1 because he did not see PW1 before
witness (PW3) was Senior Inspector Theko. He said he was at the
pitso, sitting in a landrover. He felt drowsy, he was woken up by a
sound of fireworks. When he looked up, he saw the deceased
(Colonel Kholokholo) staggering and falling. Deceased was less than a
meter from him. Accused (whom he knew) fired twice at deceased after
deceased had fallen. PW3 saw PW1 holding accused from the back. PW1
asked accused why he was killing a person. Accused said he was
killing deceased because deceased had brought about his expulsion
Accused added that justice had not been done. Thereafter accused was
taken away. PW3 and others took deceased to hospital where he doctor
said he was dead a short time after their arrival.
cross-examination PW3 said he did not hear deceased say anything. PW3
only saw PW1 when he caught the accused.
Moferefere Senokoane who had attended a pitso. He says he heard a gun
report after the Prime Minister had risen. He heard three reports.
People ran away from the scene and he went to help arrest the man
responsible for firing. He could no more identify the accused because
accused had lost weight. There was someone who had already caught the
accused when PW4 came to help. The person who had been shot had
fallen down. PW4 and the police took accused to the charge office.
When he got there the police took a statement from him. They took
another statement some days later. PW4 said he heard accused say that
he should not be treated badly because he would tell his story where
he was going. While they were going to the charge office with the
accused, at the back of the van, he asked the accused why he had
killed that person. Accused said that man had dismissed him from
cross-examination PW4was told that in his statement (which counsel
had in his possession) PW4 had not said he asked accused why he had
killed a person. PW4 said he had mentioned that fact in his
statement, he does not know why that was not recorded. When counsel
said accused will deny that PW4 asked him why he killed a person, PW4
replied that a person who is guilty never admits it. PW4 in reply to
questions said he had earlier seen from a distance deceased talking
person who later got hold of the accused. He was at the side of the
tent and they were 5 paces apart. PW4 said he could not hear what
deceased was saying to that person because they were far from him.
Nkohli was the fifth Crown witness (PW5). She is a police woman. She
told the court that she was on duty at the Prime Minister's pitso
(public meeting) that day." She had been posted to control the
crowd behind the tent with other members of the police force. There
was a vehicle of the Commissioner of Police, she noticed deceased
meeting PW1. She heard a gun report and looked around and saw nothing
(although she was not far from deceased). She then saw deceased fall.
PW5 then heard deceased say what is happening to him. A person fired
shots at deceased who had fallen at the feet of PW1. PW1 caught that
person. She was told to go and get a vehicle and she did so. As she
was driving away, three empty cartridges and a stick belonging to the
deceased were thrown to her by Mabitle's driver. They took deceased
to hospital with detective Sergeant Ntlaloe and a nurse. They placed
deceased before a doctor. Mrs Kou the Commanding Officer Butha Buthe
later confirmed deceased had died. PW5 had later handed the shells in
her possession to Mr Takalimane a policeman in Butha Buthe.
cross-examination PW5 said in her report she had said she had tried
to help deceased who had fallen by making him sit straight. She had
even said Sergeant Maime (PW1) had applied first aid, but stopped
doing so and caught accused who was firing again. She had heard an
unidentified voice that asked accused why he was shooting the
deceased. Accused had replied that deceased had caused him to be
expelled from work. She said she heard what she heard before people
could be many. People were removed from behind the tent for security
reasons. PW5 said
the accused and that he was out of work, but she does not know of the
accused's car accident and the effect it had on his mental or
Khotsoane (PW6) was the next witness. He had worked with the accused
in Butha Buthe. That day (the 20th August 1999) he was on duty at the
Prime Minister's pitso. He had been on the eastern side of the Prime
Minister's tent when he heard a gun report. He immediately proceeded
in the direction of the gun report. When he came to the back of the
tent he found deceased had fallen and PW1 was holding accused. PW1
and accused were one pace from deceased. When he came nearer he saw
blood-stains on deceased's jersey as a result of which he concluded
that deceased had been shot. PW2 handed to him a pistol which had
reportedly been used. It was a Damfolio 9mm pistol AB 20052. There
were still 9 live bullets in its magazine. That type of pistol
carries 15 rounds of ammunition. PW6 handed that pistol as an exhibit
and it was marked Exhibit "1". The 9 rounds of ammunition
were handed in and were marked Exhibit" 2" collectively.
PW2 went with (he accused to the charge office. After he had heard
deceased had died, he cautioned the accused and charged him with
of Section 273 of the Criminal Procedure and Evidence Act of 1981. Mr
Mosito admitted the following documents as evidence with the
concurrence of the Crown :-
from ballistic firearm examiners that the empty cartridges had been
fired from the pistol Exhibit" 1". This was read into the
record and marked Exhibit "A" by consent of the parties.
(5) Empty Shells and 2 spent bullets that had been collected by the
police from the scene of crime. They were collectively marked Exhibit
"3" by consent of the parties.
postmortem report was read into the record and was handed in by
consent of the parties and marked Exhibit "B".
accused's confession was read into the record by consent of the
parties and marked Exhibit "C".
called (PW7) Major Mahao as the seventh and last witness. PW7 told
the court that he was a Senior Superintendent in the Leribe district.
On the 20th August, 1999, he found the accused already under arrest.
He showed him the firearm Exhibit "1". Accused said it was
his. PW7 asked for accused's fire-arm certificate. Accused took PW7
to accused's house where accused gave him a firearm certificate
dated 31st December, 1996. After PW7 had made investigations and
satisfied himself that the fire-arm certificate of the accused had in
fact expired, he cautioned the accused and gave accused a charge of
possessing a firearm without a valid certificate and contravening
Section 32(1) of the Internal Security Arms & Ammunition Act of
1966. Under cross-examination, PW7 admitted that he himself had not
found accused in possession of a firearm at Likileng Football Ground
closed its case.
gave evidence in his own defence duly sworn.
the court that he was a policeman between 1989 and 1998 when he was
dismissed from employment as a policeman. He had been dismissed
because he was suspected of having torn a picture of the Commissioner
of Police. He was charged disciplinary and found guilty. It was
recommended that he be dismissed. In his disciplinary case,
Lieutenant Colonel Ntlama (the Officer Commanding Berea district) had
presided, assisted by Sergeant Manyeli. After the disciplinary
hearing, the disciplinary panel recommended that he be dismissed from
the police force.
recommendation of dismissal, accused appeared before the deceased (as
the Officer Commanding Butha Buthe district) under whom the accused
served. Accused asked for forgiveness and asked accused to make a
recommendation to the Commissioner of Police that accused should not
be dismissed from the police force. Accused told the court that the
deceased said that he has no power in the matter, it was the
presiding officer in the disciplinary matter who made the
recommendation. The deceased said if accused asked for mercy he
should go the presiding officer who made the decision, and ask for
mercy, perhaps he might make the recommendation to the Commissioner
of Police that the accused should not be dismissed. Accused says he
met the Presiding Officer Colonel Ntlama and asked for pardon.
Colonel Ntlama said the decision had been made by accused's seniors
and his senior was the deceased. Some policemen charged with
disciplinary offences are acquitted while some are convicted. Accused
went back to deceased who told him that once a decision had been
reached, he could not reverse it. It was the Commissioner of Police,
acting on the recommendations of the district commander, who makes
the final decision. The accused told the court that he informed the
deceased that he would appeal, and in fact did so.
had been before the disciplinary committee in May 1997. In June he
was found guilty. He appealed between June and July 1997. The police
appeals board which sat in September 1997 dismissed his appeal, and
on the 31st December 1997, the Commissioner of Police terminated his
employment. Accused had remained in the police force while his appeal
which had been lodged within 7 days of his conviction by the
disciplinary panel was pending.
summary of the facts of the case which lead to his dismissal was made
by the accused. He said he had relieved other policemen from duty at
the Charge Office after lunch. Those policemen had said there was
nothing important to report. A security man had asked for Sergeant
Manyeli, and accused had gone into the Radio Room to phone Sergeant
Manyeli. While accused was phoning, he observed that the picture of
the Commissioner of Police had been torn. Accused went to police
woman Thakheli and asked if she knew who had torn that paper (meaning
the Commissioner's photo). Police woman Thakheli lamented the fact
that she easily gets into trouble. That being the case, she is going
away so that if this is discovered, she should not be there as she
might get into trouble. Accused retorted that it is no use because he
will say he reported to her if he is asked and this might get her
into trouble. Whatever happens to him if he gets into trouble will
have to happen to him while he is still on duty. From there, he went
to report to Sergeant Matsumunyane what had happened. He in turn
forwarded accused report to his seniors. It was on these facts that
he was charged and found guilty.
had (on the 31st December 1997) taken the disciplinary proceedings in
his case on review to the High Court as soon as he received the
of Police dismissing him from the police force. His attorney Mr
Khasipe who had come to Butha Buthe informed him that he had lost his
case before the High Court. He had been on his way to Maseru when
someone told him his attorney would be at the Magistrate's Court,
Butha Buthe, he should wait for him there. This he did.
learning that he had lost his case before the High Court, accused
says he was hurt by this bad news. He went home to inform his wife.
His wife said he should no more go to Maseru as he now knew the
results. Accused says he went to the Prime Minister's public meeting
(Pitso). Accused said he was not expecting to see anybody there. When
he was asked if he did not expect to see the Prime Minister there,
accused said he did - what he meant was that he did not intend to do
anything. He got to the pitso and found many people. Immediately on
arrival he saw deceased (Colonel Kholokholo). Accused's heart had a
black-out (meaning his heart was so deeply hurt - as if something had
hit him on the heart). Accused says he lost consciousness of his
surroundings. He only remembers that he had felt like firing his
pistol at the deceased. The last thing he remembers is getting hold
of his gun.
says he recovered his consciousness in police custody. He was being
told he did this and that. He felt very sorry indeed. He does not
recall ever speaking to anybody at the pitso. He had taken his gun
going to Maseru. He did not expect anything to happen that might
cause him to use that gun. He always goes about with a gun everyday.
He does so in order that if his home is burgled, burglars should not
find it and later misuse it.
said when he got to the pitso and saw deceased, he thought about the
had lost. He thought about his children who would miss their
education, insurances that would lapse, his furniture that would be
repossessed because of nonpayment of instalments and generally
the future of his family. Accused told the court that he was the sole
bread-winner for his family. He has a wife and two children, a girl
aged 21 years and boy aged 16 years. All these consequences came to
his mind when he saw the deceased because he knew clearly that
deceased is the one who brought about his expulsion because deceased
knew him. Deceased was the officer in charge of Butha Buthe district.
Apart from the town of Butha Buthe deceased was in charge of 5 police
posts spread over the district. Deceased was in charge of between 80
and 100 policemen of all ranks. Deceased knew accused as he knew any
of the 90 to 100 policemen.
then told the court that this was not his first black out. It was in
fact the second one. These blackouts happened after a car accident in
which he was seriously injured in the head and ribs. He was even
hospitalised. He attributed these blackouts to the car accident. The
blackouts happen when something had hurt him in the heart or when he
is seriously disturbed. There were no other black-outs other than the
two mentioned above.
fire-arm on the Charge Sheet is not his and no one asked him about it
at the pitso ground. He never possessed such a weapon. He would have
known if he was asked about such a weapon although he was unconscious
because, the police would have followed the matter up after he had
regained consciousness. Accused had produced his firearm with a
fire-arm certificate that had lapsed. He had not been aware of the
fact that his fire arm certificate had lapsed through carelessness.
He bought the firearm for R2500.00 and it is his valued possession.
applied for an amendment of Count II in terms of Section 161(in)(b).
(in) of the Criminal Procedure and Evidence Act of 1981 by deleting
13 after A in the serial number of the firearm and substituting the
letter B so that the serial number would be AB 20052. Mr Mosito
(counsel for the accused) had no objection. It was agreed by both
parties that the PW7 in fact had charged accused of contravening
Section 3(2)(a) of the Internal Security (Arms and Ammunition) Act of
began its cross-examination as the defence had completed its
cross-examination Mr Rantsane for the Crown asked the accused how the
first black out happened after the accused had had a car accident.
Accused said his children had come late from some school activity and
his wife was siding with them. That made him so angry that he broke
the table without knowing it. His temper cooled after an hour and
thirty minutes. He only learned from his wife what had happened. That
was the only black-out he had before the 20th August, 1999.
was hurt when he heard from his attorney Mr Khasipe that he had lost
his case before the High Court, but he did not have a black-out
because it just comes, he does not control it. He went home and then
to the Pitso (public meeting). His feelings had subsided because he
had talked the matter over with his wife. He took a short cut to the
pitso. This short cut goes through the forest. Out of the forest he
got to the back of the tent going to the front of the tent. The
black-out happened immediately he saw the accused. Accused only
remembers holding the gun. After that he does not remember thinking
of anything. Accused admitted he had told the
earlier that he thought of his loss of work, the loss of education
his children would suffer, insurance policies lapsing and the general
problem he and his family would suffer as a result of his expulsion
from the police force. All these things had come to his mind suddenly
and in a short time.
said he knew it was the deceased who caused his expulsion. Colonel
Ntlama who presided over his disciplinary case had come on the
instructions of the Commissioner of Police. Accused said he had no
doubt he had had a far hearing. Then when accused was asked to repeat
what he had said, accused said he had not heard the question he was
answering. He had not been the only one who entered that office nor
was he the only one who had been on duty. He only reported what had
happened. Yet he was the only one that was charged. He was found
guilty only because he had decided to report what had happened when
police woman Thakheli chose to run away. The words she had said to
her when he said he was going to report the matter regardless of
consequences were taken as an admission of guilt. Those words were
"seo ebang seka nja, se nje ke ntse ke ea mosebetsing"
translated they mean let what has to happen to me happen while I am
still at work. Those words were said to discourage police woman
Thakheli from running away and avoid making a report.
was asked whether he expected the deceased as Officer Commanding to
hide to the Commissioner of Police the fact that his picture has been
torn. Accused answer to the question was that he expected deceased to
report this matter to the Commissioner. Then accused was asked why he
did not go for Colonel Ntlama who had presided at the disciplinary
hearing. Accused replied that if he had planned the killing he would
have gone for Colonel Ntlama. His real grievance is
was convicted wrongly. Accused denied he was fully conscious of what
he was doing. Crown counsel said to the accused, he found it strange
that accused could have known that he did not say to PW4 that he
killed deceased for expelling him from work if indeed he was
unconscious. Accused maintained he was unconscious. Crown Counsel
then asked the accused if his counsel asked that particular question
on accused's instructions, accused said yes. The accused insisted
that he does not remember what he said or what was said to him during
his period of unconsciousness.
said he saw deceased about 12 to 15 paces and had a black-out. He
probably walked that distance before shooting the deceased. Accused
said as a policeman he has a wide knowledge of issues of security, he
would not do a foolish thing of walking through a cordoned area.
There was probably no yellow cordoning off tape. People were milling
around even behind the tent. He admitted that even if the area was
cordoned off, the police still regarded him as one of them although
he was a former policeman. During the period between the 31"
December 1997 and the 20th August 1999, he had been meeting the
deceased without doing anything to him although he thought deceased
was responsible for his expulsion. Deceased had nothing to do with
the decision of the High Court that went against him, but the High
Court confirmed what deceased had already done. A policeman in the
Leribe district had been expelled for tearing a picture of the
Commissioner of Police. That policeman was charged and expelled. That
is why policewoman Thakheli ran away while he (the accused) decided
that he would not.
said he went about with the gun loaded to avoid it being stolen. A
gun cannot be separated from its magazine. He had felt like shooting
his heart was hurt and held the gun before the blackout. He always
goes with his gun cocked. Accused denied that he does not keep the
gun at home to protect it from being stolen because he keeps it
cocked. He got into the habit of going about with a cocked gun during
the period he used to escort important people. Accused said he goes
about with a cocked gun all the time despite the training he got from
the police force to always keep his gun with its safety catch locked.
He goes with a cocked gun even though he knows if he were to fall the
gun would automatically fire and hurt the accused and those around
told the court that this black-out took about 30 minutes while the
previous one had lasted one hour thirty minutes. He has heard of
people who bang tables and throw around dishes when they are angry.
concluded by saying he was not looking for the deceased, he just met
deceased by accident. In re-examination accused showed that all his
family problems came to mind in a moment, as soon as he saw the
deceased. Accused was under ex-Staff Sergeant Jonas on the day he
discovered the picture of the Commissioner of police torn. He gave
him a report which he forwarded to the high authorities through
proper channels. Accused said he has no knowledge if Staff Sergeant
Jonas had anything to do with his expulsion.
said he had been going around with a fire-arm since he joined the
police force. He had no fire-arm issued to him. Side Fire-arms
(pistols and revolvers) are issued to troopers on request. He was
only issued with such a fire-arm on request in 1994 after his car
accident because he was leaving in a dangerous area. It was for
self-defence. He returned it immediately in 1996 when he acquired his
Accused said he recalls holding his pistol while it was in its
holster. He does not remember pulling it. He never decided to shoot
deceased. He cannot recall doing so. Then the defence closed its
has no dispute on the facts. Nor is the unlawfulness of the killing
of deceased disputed. What the accused is saying when he pleads
automatism is that he did not kill deceased voluntarily because he
had a blackout and does not remember anything. He was, so to speak
unconscious, therefore he could not in law perform an act. He claims
to have ben sleep walking, therefore even though he does not deny
shooting the deceased he is not legally responsible. He was however
question for determination is whether a sane person can ever commit a
crime while he is wide awake and pleads automatism. There is no
dispute that automatism is a characteristic of insanity, therefore an
insane person is not legally responsible for whatever he does. But a
sane one is.
must first do is to review the law on the subject in order to be able
to determine whether the accused is under our law of the category of
that in law falls under automatism.
accused's defence is that of automatism. The South African courts
have described acts committed by a person relying on this defence as
involuntary, consequently such a person cannot be held criminally
liable for such acts. If this defence succeeds, the accused
(according to South African law) has to be acquitted. Burchell
(General Principles of Criminal Law) South African Criminal Law and
Volume I 3rd Edition at pages 41 and 42.
reason South African Courts hold such a person not criminally liable
is that such acts are mechanical, unconscious, automatic or are
caused by an involuntary lapse of consciousness. To put what Burchell
says in his own words:
"This conduct covers conduct which occurs during sleep, black
out, dissociation, hypnosis, or is a result of arterioschlerosis,
concussion, epilepsy, hypoglycemia (low blood sugar), intoxication or
provocation. Automatism brought about by mental illness is termed
"insane" automatism and is distinguished from the other
manifestation of automatism which is terms "sane automatism".
are involved with in this case is "sane automatism" because
accused was healthy not suffering from insanity or any mental
illness. He says seeing deceased acted as a form of provocation that
caused him to have a complete mental blackout.
is nothing new in law. It was largely discussed theoretically in
English law. Today automatism, which occurs because of what happened
internally in the body of the accused (be it mental or physical), is
treated as a disease and therefore a form of temporary insanity.
Cases such as R v Dhlamini 1955(1) SA 120 and R v Ahmed 1959(3) SA
776 which purport to apply English law are based on a
misunderstanding of English law.
law develops from case law rather than broad principles. The English
concept of disease (of which automatism is a part) is broad and it is
any bodily condition that affected the mind at that particular time.
It is treated as insanity or temporary insanity especially if it is
likely to recur like epilepsy and sleep-walking.
case of S v Sullivan  AC 156 at page 172 where Lord Diplock
rejected the medical definition of insanity. He said any bodily
condition that causes a defect of reason, memory and understanding is
a disease of the mind whether "the impairment is organic, as in
epilepsy, or functional, or whether the impairment itself is
permanent or is transient and intermittent, provided that it
subsisted at the time of the commission of the act".
is treated not as insanity in English law (according to Lord Lawton
LJ) at page 922of v Quik  QB 910 where:-
"A mulfunctioning of the mind of transitory effect caused by the
application to the body of some external factor such as violence,
drugs, including anaesthetics, alcohol and hypnotic influences cannot
be fairly be said to be due to disease."
follows that in English law a black-out that is caused by internal
operations of the body which is triggered by stress, anxiety,
depression due to marital and personal problems are not regarded
external. Therefore they constitute mental disease. In the Lesotho
case of Rex v M Chobokoane CRI/T/90/99 two psychologists, which took
opposite positions on the question of the accused's black-out, said
that what is described as "sane automatism" today would
have been described as temporary insanity over ten to fifty years
ago. Legal definition do not change but in medicine and psychology
definition change often. But legal definitions do not change often.
automatism" is a recent development in South African law. It is
what we called judge made law through the doctrine of precedent. It
is a logical development of what was said by Rumpff CJ in a case of S
v Chretien 1981(1) SA
This was a case of drunken driving. Rumpff CJ said a man who is blind
drunk acted like a sleep walker. Whatever he did was involuntary
therefore it was not his act. That being the case he had no capacity
to commit any crime. Therefore such a drunkard who voluntarily
imbibed intoxicating beverages to excess should be acquitted for any
crime he might commit in that state of extreme intoxication.
of the case of S v Chretien South African law began to change
drastically on the issue of capacity of the accused person to commit
crime. A jurisprudence began to develop fast in which the accused
might not be found criminally liable because of non-pathological loss
of criminal capacity whether drug induced or brought by environment
and personal problems that create a situation that the accused find
himself in distress or as fear S v Bailey 1982(3) SA 796 C) and
extreme emotional distress—See S v Arnold 1985(3) SA 256 at
page 264 C).
on the issue of intoxication the South African legislature felt
compelled to intervene. In 1988 it decided to do something about the
issue of intoxication only which had caused an outrage. In S v
Chretien it had become clear that Rumpff CJ "had miscalculated
the community's attitude to intoxication".—Burchell SA
Criminal Law Volume I (General Principles of Criminal Law) page 188.
The South African Criminal Law Amendment Act No.l of 1988
"1.(1) Any person who consumes or uses any substance which
impairs his faculties to appreciate the wrongfulness of his act..
.and who while such faculties are thus impaired commits any act
prohibited by law under any penalty, but is not criminally liable
because his faculties are impaired as aforesaid, shall be guilty of
an offence and shall be liable on conviction to the penalty.. .which
may be imposed in respect of that act."...
amendment even went so far as to make intoxication to give the courts
the discretion to treat intoxication as an aggravating factor in a
the feelings of the South African community the South African Courts
regarded what was said in S v Chretien to be logical and to be in
conformity with general principles. In the past only insane people or
people suffering from mental illness were deemed to have no capacity
to commit crime. Therefore the onus of proving insanity was on the
accused. What Rumpff CJ said in S v Chretien revolutionised capacity
to commit crime within South African law. From then on, persons would
"only be criminally liable if their actions are determined by
their free will. This principle is expressed by the requirement that
for purposes of criminal law, a human act must be voluntary in the
sense that it is the subject of the accused's conscious
will."—Burchell South African Criminal Law and Procedure
Volume 1 (General Principles of Criminal Law, page 41. Within a few
years what is called "sane automatism" got out of control
and many accused began to claim that they had black-outs and
therefore were not criminally liable for crimes committed.
who are sane can now escape the consequence of the crime they commit
provided they can create a doubt in the mind of the court on the
question of automatism. " Sane automatism" has been
extended to cases of provocation if it can be shown that such a
provocation or painful event has led to a mental black out rendering
the accused to act involuntarily like a person who walks in a dream.
This is the defence of the accused in the case before me.
in S v Chretien in extending automatism to sane people said at page
that up to 1981 South African law was "juridically impure"
on the question of capacity to commit crime. The law in my view can
never be pure in logical and moral terms. Therefore the saying "the
law is an ass" is a recognition that the law is not logical and
that very often it embarrasses those who believe in the rule of law
person who commits a crime in circumstances of "sane automatism"
gets acquitted of his crime and goes Scot-free. An insane one who
commits a crime because of a mental illness however temporary is
found not guilty, but is then detained in a mental hospital or prison
until it pleases the State President to release him even though at
the time of trial he has become as sane as the next man. It is
reasonable to say it is not safe to allow back into the community a
person whose insanity might recur, therefore it is just as cogent to
say a person who has been found to have had sane automatism may
commit crimes because he has shown susceptibility to the weakness of
acting involuntarily under stress or provocation, therefore he should
be detained in the same way as one who is temporarily insane.
even more illogical, "juridically impure" and unfair is the
"Since insanity is involved, in a case of the accused is
burdened with proof of his insanity on a balance of probabilities....
On the other hand in a case of sane automatism, the onus of proving
the elements of liability beyond reasonable doubt remains with the
prosecution despite evidence of automatism...." Burchell South
African Criminal Law and Procedure Volume I (General Principles of
Criminal Law 3rd Edition page 43.
odd to put an onus on a sick man rather than a healthy one. If the
society then it seems South African law has made the life of healthy
criminals easier than it is on the sick to the detriment of society.
Rumpff CJ in R v Chretien and those who have made "sane
automatism" fashionable is that in Lesotho and England the onus
is on the accused because "sane automatism" largely falls
under temporary insanity. Therefore the onus of proof is on the
accused. Insanity carries such a stigma quite apart from the
indefinite detention that follows proof of insanity. No one would
take the trouble to be declared temporarily insane, unless there is
no other way to escape an even worse calamity. Therefore Blackstone's
Criminal Practice 1998 3-12 concludes:-
"Until recently, even this possibility was a largely theoretical
one since the consequences of an insanity verdict were so
unattractive that seldom would an accused seek one."
Until R v
Chretien where Rumpff CJ claimed to purify the law by coming up with
an easily available and attractive defence of "sane automatism",
there was logic in putting the onus of proving insanity on the
accused because no accused would readily opt for temporary insanity,
by proving it. Putting the onus of disproving "sane automatism"
on the Crown with an assurance of a complete acquittal and a
discharge has distorted the South African criminal justice system. It
is more illogical than before, because the onus is put on a sick
person while a healthy one has no onus.
feature of "sane automatism" that gives rise to problems is
that too much reliance is placed on the evidence of psychiatrists
when there are serious problems with determining post facto what
happened at the time of the crime. The
often cannot afford medical fees of such specialists. In poor
countries where legal aid is not well-funded, and medical facilities
are scarce, the poor and the disadvantaged often cannot have the
services of psychologists and to assess them and make a case for
was prepared for "sane automatism" to get into the law of
provocation by Diemont AJA in S v Van Vuuren 1983(1) SA 12 at page 17
when he carried the principles of S v Chretien closer to the
provocation in an obiter dictum when he said:
"I am prepared to accept that the accused person should not be
held criminally responsible for an unlawful act where his failure to
comprehend what he was doing is attributable not to drink alone, but
to drink and other facts such as provocation and severe mental
case of S v Arnold 1985(3) SA 256 the area of provocation as it was
traditionally known was invaded by "sane automatism".
Indeed even what was known traditionally as diminished responsibility
in murder has never been quite the same since this extension of "sane
automatism". In that case the accused disturbed past from
childhood up to his commission of a murder were considered.
(Arnold) had had an unstable family life as a child, failed in
marriages, lost jobs and had married a wife 21 years younger than he
was. It was this woman that he killed. He loved this woman in an
obsessive manner. Their marriage had been happy until the
mother-in-law came to live with them. From that time their marriage
began to disintegrate and become turbulent. The accused was forced to
expel his mother-in-law (the deceased's mother) from their home after
he had been forced to put his son by his former marriage in a
children's home because
deteriorating domestic situation. There was now violence in their
domestic life and the deceased (who professed to love the accused)
day Arnold killed his wife, the deceased, she had come to fetch her
belongings. While they were trying to patch up their marriage, the
deceased's mother telephoned Arnold (the accused) saying she had
nowhere to live therefore she wanted to come to live with accused and
the deceased again. This was something the accused was not prepared
to have. A stormy emotional scene occurred during which the deceased
among other things provoked the accused who was already a highly
excitable emotional wreck. Accused who always went about with a
fire-arm shot the deceased. Accused claimed he did not remember how
he loaded his fire-arm, aimed it at the deceased and shot her. Arnold
had soon thereafter called a neighbour, an ambulance and the police.
The trial court summarised the psychiatrist's report which was
favourable to the accused at page 261 of S v Arnold as follows:
"His conscious mind was so "flooded" by emotions that
it interfered with his capacity to appreciate what was right or wrong
and, because of his emotional state he may have lost his capacity to
exercise control of his actions."
psychiatrist's evidence was unchallenged. The superintendent of the
home (where accused's son was) had said the accused was at this time
suffering severe emotional stress as his home broke down, he was a
pathetic figure at the time he returned his son to the children's
home, a little before accused shot his wife.
court at page 262 B and C of S v Arnold said this of the accused:
"It is clear that the accused was emotionally extremely upset by
all prior events and that, at the time of his final conversation with
the deceased he could have been at a breaking point.... The case is
remarkable in that not a single statement made by the accused was
found to be untrue. A large number of the statements made by him were
corroborated from other sources and, except for the statement that he
can't remember, all the rest of the evidence fits logically, and has
the appearance of being highly probable. The State could however not
point to any fact or reason why these statements should not be
accepted except to say they were improbable."
court found that the State had not proved that the accused had the
criminal capacity because "extreme emotional distress" can
lead of a state of criminal incapacity. The accused was found not
In S v
Campher 1987(1) SA 940 the accused's defence of sane automatism was
not believed on the facts but the principle that provocation and
severe emotional distress might lead to an acquittal on the grounds
of sane automatism if the accused is believed. In S v Wiid 1990 SACK
651 the court acquitted accused where temporary non-pathological
incapacity was raised and the Crown failed to rebut it.
defence of "sane automatism" has caused quite a few raised
eye-brows. In the case of S v Nursing 1995(2) SA 331 it was found
unbearable tension can lead to a situation in which an emotional
occurrence might trigger a situation in which actions may appear goal
directed when in fact the intellect is like that of a dog biting in
response to provocation. This happens where due to past history of
abuse a person becomes capable of separation of intellect and emotion
thereby suffering from a temporary destruction of intellect. In that
case the accused was acquitted. In S v Moses 1996(1) SACR 701 accused
was acquitted of murder for killing his
lover who had had unprotected sex with him and afterwards said he had
aids. Accused became very angry. He hit deceased with a blunt object
and when deceased was helpless, accused went to look for a knife and
stabbed and carved deceased with it. Accused had a history of poor
control and anger and came from a dysfunctional home. Accused was
acquitted because the crown had not proved beyond reasonable doubt
that accused had the requisite criminal capacity at the time of the
problem of "sane automatism" has been compounded the fact
that courts in South Africa have accepted that an overwrought person
who is able to appreciate right and wrong and for whom no medical,
scientific or psychiatric reason can be found for his loss of self
control can be acquitted due to lack of criminal capacity because the
mind is capable of creating a retrograde amnesia. See S v Gesualdo
1997(2) SACR 68. The reason being that an overwrought mind might not
appreciate what it had done and also be unable to exercise control
over a person's actions.
over-reliance on psychiatrists who sometimes tend to be credulous and
can be misled by the accused takes place at a time the findings of
psychiatrists have been found to be capable of being contradicted by
other proved facts. In S v Potgieter 1994(1) SACR 61 South African
courts found that in their findings of "sane automatism"
psychiatrists rely on the trutfulness of the alleged offender as a
crucial factor which also found their defence in courts. In that
case, it was found that despite the psychiatrist's report that was
favourable to the accused, the wounds on the deceased as other
circumstantial evidence showed, deceased had not been killed where
the accused had said he had. The accused's defence was rejected. The
trial court noted that facts relied upon in substantiating the
defence of "sane automatism"
often consistent with a deliberate unlawful act.
time, the south African courts began to highlight presumption of the
law in cases of sane automatism. In the case of S v Cunningham
1996(1) SACR 631 they clarified the law on "sane automatism".
In that case at page 635H Scott JA re-emphasised that the onus on the
State is to establish the voluntariness of the act, but added that
the State in proving the actus reus is assisted by the natural
inference that in the absence of exceptional circumstances sane
persons engaged in conduct which is regarded as criminal do so
consciously and voluntarily. This eliminated the tendency to vaguely
allege the defence of "sane automatism" simply because the
Crown had the formidable task of proving that the accused had the
necessary criminal capacity to act. Scott JA found at page 638J in S
v Cunningham that "no factual foundation had been laid to
displace the inference of voluntariness, in other words, sufficient
to establish a reasonable possibility that he drove in a state of
in Cunningham at page 636 further put the South African legal
position straight that it is the court which decide not psychiatrist
where he said:
"It follows that in most, if not all cases, medical evidence of
an expert nature will be necessary to lay a factual foundation for
the defence to replace the inference just mentioned. But ultimately
it is for the court to decide the issue of the voluntary nature or
otherwise of the alleged act and indeed the accused's responsibility
for his actions. In doing so it will have regard not only the expert
evidence but to all the facts of the case, including the nature of
the accused's actions during the relevant period."
before me has no medical evidence. Although cases of "sane
always have to have medical evidence, its presence is often (if not
always) of great assistance. The case before me involves an accused
who has shot and killed a person. It has a lot of similarities with
the case of S v Kok 1988(1) SA 538. In Kok's case, the accused was a
Superintendent in the South African Police Service and a Commanding
Officer of the Public Order Policing Unit in Portshepstone. He killed
a man and his wife and missed their son with a shotgun and a 9mm
pistol. The accused (Kok) had been drinking with friends. After
accused, who was at a meeting of the South African Police Service
Angling Club, received a distress call from his own wife. She was
very upset that the Deputy Sheriff was enforcing a judgment of
R600-00 which the Small Claims Court had granted against her in
respect of two table cloths from Mrs Botha (one of the deceased in
the case). Accused's wife had been denying liability, but judgment
went against her. One of the accused's fellow police officers had
offered to lend him the R600-00 owing, but the accused had declined
accused, found his wife hysterical. Accused was heard saying he was
going to sort out a few people. He went to the police station where
he armed himself with a rifle, shotgun and ammunition, a 9mm pistol
and ammunition, a hand grenade and military combat jacket. Accused
went to the deceased's home where he killed husband and wife and
their son escaped through the window. When a Sergeant went out to
investigate the cause of shooting and of gun reports, accused
threatened him with a shotgun and the sergeant retreated. Accused had
fired several rounds of shotgun ammunition and 9mm pistol ammunition.
Accused said he only remembered getting to the deceased's house and
being pushed out of the deceased's house by Mrs Botha, one of the
deceased, whom he later shot together with her husband whom he also
medical evidence of two doctors which was taking into account many
similar factors but their conclusion differed. Dr Putter found
accused suffered post traumatic stress disorder namely a dissociative
behavioural re-enactment (sane automatism) triggered by a minor push
from the deceased (Mrs Botha) on the chest of the accused. Dr Dunn
concluded accused was bumt-out, interference from politicians had
been frustrating and galling. When she faced Mrs Botha (the
deceased)something snapped. Accused was undoubtedly under a great
deal of stress, emotional and work-related. "Dr Dunn did not
think that the accused had gone out to the deceased's home with an
intention of seriously injuring them, but with the stress heightened
by alcohol and the deceased's attitude, he reacted the way he did. Dr
Dunn was of the view that he acted in a situation of diminished
in S v Kok disbelieved a lot of what the accused said in evidence.
Disbelived Dr Putters' evidence and conclusion of "sane
automatism'and believed Dr Dunn's evidence and conclusion that the
accused was a case of diminished responsibility. On the basis of that
medical evidence and the evidence of other witnesses the accused was
found guilty of two counts of murder and one of attempted murder. It
is significant that diminished responsibility was translated into
"sane automatism" in the case of S v Gesualdo 1997(2) SACR
68. That being the case, the creation of "sane automatism"
by the South African Courts and making it in a complete defence has
left the South African criminal law into a parlous state. Its
contradictions will take time to resolve.
South African courts have over the years realised that "sane
automatism" has been, or might be abused by those accused who do
not wish to take the consequences of their misdeeds. It is not out of
disrespect for the medical
that courts are emphasising that it is them that decide not the
medical experts that give evidence to assist them—See S v Kok
(supra). The fact of the matter is that psychiatrist work under
conditions that are far from ideal. They initially rely on the
accused (if not exclusively) for what happened before or during the
occurrence which is the subject of investigation. For family history,
accused personal background, domestic situation, even what happens at
work, psychiatrists have to rely on the accused and his family. The
information psychiatrist get might be false and incomplete because of
the bias towards the accused that the accused's family often have. It
is on the basis of this information that psychiatrists make their
reports post facto about what happened in their absence.
automatism" might have a potential of being an unruly horse,
consequently South African courts are beginning to hold their reins
tightly in order to ensure it remains under control. In S v Ngema
1992(2) SACR 651 the accused claimed he killed deceased in a dream
thinking deceased was a "tikoloshe". The psychiatrist said
because accused remembered vividly his act was not involuntary and
the accused was found guilty. I have difficulty with this reasoning
because most people I know remember their dreams. In Scotland, in the
case of HMA v Fraser (1878) 4 Couper 70 (Gordon Criminal Law 2nd
Edition at page 74) the accused was acquitted, but then it was not
just one case of sleep walking—accused had a history of
somnabulism. Fraser had an attested history of sleep walking and
committing acts of violence in a somnabulistic state. The South
African courts' ' attitude in rejecting Ngema's story makes sense
while the psychiatrist's reasoning does not.
with S v Cunningham, S v Kok (already discussed above), South African
courts insisted on a proper basis being laid in S v Van der Sandt
In S v Pederson 1998(2) SA 383 a South African court insisted in a
case of "sane automatism" that expert evidence and all
facts of the case, including the accused's actions during the
relevant period should be scrutinised. At page 388 of S v Pederson
Marnewick AJ in scrutinising the statements of accused noted the
statement accused made before the magistrate had been seen by the
accused's attorney before and that a number of ideas might have been
planted in the accused's head or might have developed in his head.
year later accused was seen by a clinical psychologist who gave a
favourable "sane automatism" report.
emphasising the need to scrutinise expert evidence was echoing the
words of Kumleben JA in S v Potgieter 1994(1) SACR61 at page 73 to
74. The court in S v Pederson went so far as to reject retrograde
amnesia as automatically a material on which "sane automatism"
could be based. The reason for the court's conclusion was that
retrograde amnesia occurs where the accused's psyche merely
suppresses memory of events. At page 390 Mamewick AJ said courts
accept a situation where truly there is no memory of the events
concerned rather than retrograde amnesia.
"Retrograde loss of memory on the other hand, is a device used
by the psyche to suppress unpleasant memories and a man can only have
a memory of an incident or event, if he had sufficient intellectual
capacity left at the time of the incident or event to have a measure
of control over his actions."
found Pederson guilty of murder despite the evidence of two medical
experts, a clinical psychologist and a psychiatrist. S v Pederson
should be contrasted
with S v
Gesualdo 1997(2) SACR 68 (decided almost a year before) where
Borschers J in acquitting the accused of murder and discharged him on
the grounds that the Crown had not discharged its onus of rebutting
"sane automatism" said at page 77 FG:-
"The question is whether, while acting unconsciously, he was
unable to control what he did. If the human mind is capable of
creating a retrograde amnesia because the mind cannot tolerate an
appreciation of what it had done, it seems possible that it may also
be unable to exercise control over a person's conscious actions in
aforegoing, it is clear that doctrine of "sane automatism"
was initially warmly and uncritically embraced by the South African
courts. But now they are treating it with reserve and caution. In S v
Henry 1999(1) SACR 13 the South African Supreme Court Appeal after
noting the natural inference that some people are deemed to act
voluntarily reaffirmed that evidence of "sane automatism"
should be carefully scrutinised. It is not sufficient that there
should have been loss of temper. Loss of temper in the ordinary sense
is a common occurrence—On the other hand, non-pathological loss
of cognitive control or consciousness, arising from emotional
stimulus and resulting in involuntary conduct is most uncommon. These
two conditions should not be confused. Problems still remain as the
case of Molefe v Mahaeng 1999(1) SA 562 reveals, there is still a
tendency to put onus of proof on the Crown and ignore the logical
inference about sane people. The Crown is expected to prove even what
is essentially the private mind of the accused. At page 569 of Molefe
v Mahaeng Melunsky AJA in upholding the High Court's overturning of a
finding on credibility by a magistrate said:
"It is true that the respondent, despite his evidence to the
contrary, did not mention the black-out to the nurse and the doctor
who attended him on the 11th and 12th August. Indeed he first
complained to the medical personnel three weeks later and after he
had received a demand from the appellant's attorney. These facts do
not mean he was deliberately untruthful in his evidence or that the
complaint of a black-out was a fabrication, but they are of
sufficient importance to negative a finding that his version was the
more probable one.
Having regard to the evidence as a whole, and despite the
shortcomings in the respondent's own testimony, I am not satisfied
that the appellant has discharged the onus of proving that the
respondent's conduct in driving on the incorrect side of the road was
due to his voluntary act."
thus shown the problems of "sane automatism" and the
problems it is causing the courts, it is time to apply it to the
facts of the case. Before doing so it is important to find out what
the law of Lesotho on automatism is.
LAW OF HOMICIDE
an inevitable confusion between South African law and the law of
Lesotho because we inherited Roman Dutch law from the Cape of Good
Hope like the rest of South Africa, Zimbabwe and Swaziland. The close
relationship between our law and that of South Africa was deepened by
the fact that all the above countries were British Colonies, and part
of the British Empire and the Commonwealth. What is true is that the
Common-law of Lesotho and that of the rest of former British Southern
Africa (which has a Roman Dutch law base) is the same up to 1884—See
the General Proclamation 2(13) of 1884.
law gradually changed from the law of the Cape of Good Hope from
1884. Because we use South African text books and South African
trained judges our courts have often regarded South African law as
the same as the law of Lesotho,
where the laws are clearly different. For example, the Court of
Appeal and the High Court treated a marriage by Basotho custom as if
it was a South African Bantu union. See Zola v Zola per Jacob CJ
1971-1973 LLR 1 and Mokhothu v Manyaapelo 1976 LLR 281 per Smith JA.
This was so, despite Section 3of the Marriage Proclamation No. 7 of
1911 which declared in no uncertain terms that a marriage by Basotho
custom is a marriage and it shall be optional to register the first
of the said marriages. It was only after the case of Makata v Makata
1982-1984 LLR 29 for the Court of Appeal per Goldin JA that the
status of an African custom was accepted as a marriage. Even Section
42 of the Marriage Act of 1974 had no effect, the South African
perception that it was a Bantu Union had persisted.
respect of homicide the same problem has surfaced. Lesotho's law of
homicide took a different direction from that of South Africa. Before
1959, the homicide law of South Africa was dominated by English law
thinking, but it was beginning to take its own course. In the area of
mens rea, the first area where a gulf began to develop was on the
effect of provocation on mens rea. Dealing with this issue Snyman in
Criminal Law 3rd Edition page 222:
"The question to be discussed here is whether and to what extent
X can rely on his anger as a defence on a charge of committing a
crime while he was thus enraged."
Provocation and anger like cause and effect, are two different
things. What must be examined here is not so much the provocation
which has caused X's state of mind, as the state of mind itself....
Like the subject of intoxication, the effect of provocation on
liability is a subject that can be properly understood only once one
has knowledge of both criminal capacity and the forms of
culpability—that is intention and negligence."
Indeed mens rea and actus reus are so closely interlinked that it is
speak louder than words. Drunkenness and provocation are similar in
that they often cause an accused to lose self-control. In many cases
they act together to cause a person to lose self-restraint. It will
be observed that it is in this area that the defense of "sane
significance of the developing difference between the English
approach to provocation had not been brought into sharp focus because
the result was often the same although the approaches differed. It
took the case of R v Krull 1959(3) SA 392 to highlight the difference
between the developing South African law and English law. In R v
Krull the case of R v Tenganyika 1958(3) SA 7 was discussed and its
reasoning and the law applied were found not to be in accordance with
South Africa law. They were both the cases of appellate courts—R
v Krull being of the South African (Appellate Division) and R v
Tenganyika being of the Appeal Court of the Federation of Rhodesia
and Nyasaland. The case of Tenganyika was from Southern Rhodesia
(Zimbabwe), a country which, like Lesotho and the rest of South
Africa, inherited Roman Dutch law from the Cape of Good Hope.
of R v Tenganyika and R v Krull were virtually identical - in that in
them both accused who were highly intoxicated had killed peoole who
had made them very angry. In R v Tenganyika, the Southern Rhodesian
High Court had found the accused guilty of murder with extenuating
circumstances. The Federal Court of Appeal in reversing the verdict
of murder per Tredgold CJ at page 11GH said:
"Once it is accepted, however, that provocation may sometimes
prevail as a defence even if an intention to kill exists the position
is simple. The court in a homicide case would first of all enquire
whether an intention to kill was present and in so doing would take
into account all
the facts of the case, drunkenness, the fact that accused was
provoked and every piece of evidence that could possibly have a
bearing on the point. If satisfied that the intent to kill was
proved, the court would then enquire objectively, whether accused was
so provoked that, in the sane circumstances, a reasonable man would
have lost his control."
case of R v Krull which was heard by the South African Appellate
Division a year later Schreiner JA felt the reasoning in R v
Tenganyika did not successfully harmonise the subjective and
objective elements in the law of homicide. At page 399 AB and EF
Schreiner JA said:
"Whether one says a provoked man loses the power of self-control
or unable to form the intention to kill seems to me to be
substantially a question of choice of words. Either form - is
probably only a roughly approximate description of the actual mental
processes. Legal systems can only attempt by one process or another
to give effect to the basic idea, which is that the provoked person
may have been so upset that the mental element requisite for murder
may not have been present.... Since a merely provoked killing is
never justified, there seems to be no good reason for holding it to
be less than murder."
seems to have been an assumption that South African law was similar
to Section 141 of the Transkeian Penal Code of 1886 (which is based
of English law). Initially the differences seemed to be of a verbal
or linguistic nature, and Schreiner JA observed after discussing the
issue of provocation:
"That acts done after a man has lost control of himself may
still in a sense be intended is no doubt true. But also it may fairly
be and is, said that such acts are not intended."—R v
Krull at page 398 A.
rejected the Transkeian Penal Code approach (which is English) for
applying provocation after concluding that the intention to kill
exists. In South African law,
is applied earlier while the issue of intention is being
investigated. Once intention to kill has been found, murder has been
established because provocation had already been applied. Schreiner
JA felt Tredgold CJ was not correct in saying in Roman Dutch law:
"When it is found that an intent to kill is proved, the question
still remains whether the accused did not receive sufficient
provocation to deprive an ordinary man of self control and lead him
to act as did the accused. If so he may be convicted of culpable
homicide only, despite the intention to kill."—R v
Tenganyika page 13D.
the belief of Tredgold CJ that "what difference there is between
the English law and Roman Dutch law systems is more theoretical than
practical"R v Tenganyika. Schreiner JA demonstrated in R v Krull
showed there was a substantial difference although the end result is
often the same—though not always.
cases namely R v Tenganyika and R v Krull led to a re-examination of
Lesotho law of homicide. An examination of the homicide law of
Lesotho of the Criminal procedure and Evidence Proclamation of 1939
reveals that nothing was said about extenuating circumstances in that
Proclamation in Volume I of Laws of Basutoland 1949. The Criminal
Procedure and Evidence Proclamation of 1939 was amended by
Proclamation 45 of 1959 and a new Section 290 was added. This put the
law of Lesotho in line with the South African law in Act 31 of 1917
which introduced the concept of extenuating circumstances in South
African law of murder. When this was done the Criminal Law (Homicide
Amendment) Proclamation 43 of 1959 had already introduced in the Law
of Lesotho or adopted Section 141 of the Transkeian Code of 1886
which Schreiner JA had just rejected as being part of the law of the
entire South Africa in R v Krull earlier in 1959 about five months
In R v
Thuto Mabea 1991-1996 LLR 1192 this court commenting on the Criminal
Law (Homicide Proclamation 43 of 1959 commented at pages 1197 to
"The provocation that is referred to in the Criminal Law
(Homicide Amendment) Proclamation of 1959 does not affect provocation
as a "special kind of material" which, according to our
common law, has to be examined with other evidence to determine
whether the accused subjectively intended to kill. It is an English
law concept that was meant for murder whose mens rea was objectively
determined. This type of provocation is a special defence (grounded
in English law) where murder could have been found. It can cause
confusion sometimes, but so far it has been reconciled with the rest
of the existing law although imperfectly. I submit it is too much of
a good thing, it should not be a "special material" to
determine subjective intent and then be a special defence after
intention to kill has been established."
African courts in 1971 respected the legislation of the Transkei for
that territory, and in the case of S v Mkonto 1971(2) SA 319 at 326 G
said "Section 141 of the Transkeian Penal Code should be
confined to the territory for which it was passed". It is the
duty of the courts of Lesotho to apply the Criminal Law (Homicide
Amendment) Proclamation of 1959 because it is the territory for which
it was passed. The courts of Lesotho are bound by it.
case before me we are undoubtedly dealing with a defence that amounts
to a form of reaction that is not far from provocation. In it we are
confronted with the twin problem of mens rea that is inseparably
attached to actus reus. It is so because if there is no act of the
will there is no act or (actus reus). If there is no will to do
something there can be no intention. Consequently there can be no
liability for the homicide that took place.
to Snyman Criminal Law 3rd Edition at pages 222 to 223 there are two
approaches to the issue before me, namely :-
" separation doctrine approach which descended from English
General Principle" approach which has been developed by Rumpff
CJ in S v Chretien 1981(1) SA 1097 from which descended the "sane
automatism" principle which we have already discussed.
was by legislation in the field of provocation and intoxication
wedded to English law through two laws:
Criminal Liability of Intoxicated Persons Proclamation 60 of
1938—treated all persons who commit crimes such as murder
liable to indefinite detention, because they had rendered themselves
unable to know what they were doing because of voluntary
intoxication, and thereby becoming temporarily insane. They were to
be committed to prison pending the signification of His Majesty's
pleasure. In other words they will be treated like insane people.
The case of S v Chretien would not have led to acquittal in Lesotho.
See the case of TStso Matsaba v Rex 1991-1996 LLR 615.
Criminal Law (Homicide Amendment) Proclamation of 1959 which
introduced the English law principles of provocation at
South Africa was taking a different direction in R v Krull 1959(3) SA
392. Our reference point is therefore the old Section 141 of the
Transkei Criminal Code of 1886 which is based on English law as
light of the two abovementioned Proclamations, the "sane
automatism" which was born in South Africa through S v Chretien
in 1981 could not be appropriate for Lesotho, unless the courts of
Lesotho ignored the law of Lesotho as made by the legislature. While
South Africa followed the separate doctrine approach, there was no
major problem, because as Snyman in Criminal law 3rd Edition page 223
"In the era before 1970 the South African courts mostly applied
the separate doctrine approach. This aproach which hails from English
law, found its way into our law through Section 141 of the old
Transkeian Penal Code of 1886.... Provocation could never be a
complete defence, that is a defence which, if successful, would
result in X being completely acquitted."
to me therefore that since in Lesotho Section 141 of the Transkeian
Penal Code of 1886 was reinforced with the enactment of the Criminal
Law Amendment Proclamation of 1959 and while it is still in the
statute books of Lesotho no one can say of Lesotho "The present
position in our law is that the special approach adopted in Section
141 of the Transkeian Penal Code of 1886 is no longer
followed".—Snyman Criminal Law (supra) page 224. South
Africa may be free of its English heritage—but Lesotho is not.
light of Tšitso Matšaba v Rex (supra) which is a
decision of the Court of Appeal of Lesotho S v Chretien and its
offspring the "sane automatism "development in South Africa
cannot have any applicability in Lesotho. It will be noted that even
Namibia is not happy with the way non-pathological temporary
aberration has developed in South Africa including the issue of onus.
Consequently O'Linn J in S v Shivute (3) SACR 656 at 660 had to make
"The New Namibian High Court and Supreme Court is no longer
compelled to follow the decisions of the Appellate Division of the
Supreme Court of South Africa on this important question and will
hopefully in future in an appropriate case reconsider the issue."
case of Lesotho, it is not just the sovereign nature of Lesotho but
also the laws that are still in force that are in the way of the
acceptance of the South African legal development of "sane
automatism" in Lesotho of the type of S v Chretien..
problem which Lesotho shares with Namibia about the doctrine of "sane
automatism" is the problem the onus of proof is giving to the
South African courts. In discussing "sane automatism", I
had already said there were, after 1981, earlier South African cases
courts tended to hold that merely because the onus of proof is always
on the State, once it is raised, the accused was likely to be given
the benefit of the doubt. This is because what happens in another
man's mind can never be satisfactorily proved against his word unless
there is evidence aliunde. —See S v Wiid 1990(1) SACR 561 (A).
Despite the case of S v Cunningham 1996(1) SACR 631 (A) and a series
of cases that have culminated in 5 v Henry 1999(1) SACR 13 which
emphasised the natural presumption of liability of a sane person for
delictual acts, South African courts are still sometimes dealing with
onus of proof as they did in the late eighties and early nineties—See
Molefe v Mahaeng 1999(1) SA 562 (A). The facts in Molefe v Mahaeng
are in many respects similar to S v Trickett 1973(3) SA 526. In both
cases there was no evidence of a psychologist or a psychiatrist on
the black out that had caused the collision with the oncoming
vehicles involved in each case. Furthermore in both cases the trial
magistrate had found the driver that claimed automatism liable
because he did not believe him. Both matters went on appeal.
case of Trickett, the appellate court dismissed the appeal while in
Molefe v Mahaeng it was upheld. In Molefe v Mahaeng the driver, whose
vehicle was the cause of the accident, had earlier fallen down when
he slipped because of a banana peel. His right thigh had been injured
and had received medical attention. The doctor and the nurse who
treated him had not been told that the driver might have hit the
ground with his head. The trial magistrate had not made strong
findings on the credibility of the driver and his witnesses. The
magistrate had not believed them and criticised their evidence on
justifiable grounds. That driver had first mentioned the blackout
three weeks later, after he had received a letter of demand from the
attorney for the other driver. Both the High Court and the Supreme
Court of Appeal reversed the appeal and found for the driver who
claimed he had had a blackout. In S v Trickett the accused had been
found to have been to have lied or coloured her story in any way. She
had to just come out of hospital and had recovered from a long
illness. No known reason was advanced for her blackout. The
Provincial Division noted however that there is no "expert
evidence at all, and for a lay court to speculate on medical issues
without expert evidence is wholly pointless, if not dangerous".
Trickett's appeal was therefore dismissed on the grounds that she had
on her to make out a case of automatism on the balance of
probabilities. I have already noted that there was also no expert
evidence in Molefe v Mahaeng on the driver's black-out, yet the
evidence of a blackout was accepted on appeal on the ground that
plaintiff had not discharged the onus on him that there was no
Criminal Practice 98 at pages 37 to 38 says this about automatism in
"The defence of automatism arises where the accused's conduct
lacks the basic requirements of being voluntary.
The defence is limited to cases where there is a total destruction of
voluntary control, impaired or reduced control is not enough. Where
the accused is conscious, automatism will be rare but possible (e.g.
reflex actions when startled by a sudden loud noise or when stung by
a swarm of bees while driving: See Hill v Baxter  1QB 277 and
Burns v Bidder  2 QB 227 at p.240.... The law imposes serious
restrictions on such a defence, however, through the rules on
voluntary intoxication and insanity to be discussed."
the jurisprudence of S v Chretien, in English law could not grow
because, under English law:
"Intoxication is not a defence as such.... On the contrary,
intoxication operates so as to restrict what would otherwise be valid
defences of mistake, inadvertence or automatism. The responses which
the law imposes on defences caused by voluntary intoxication are in
response to the evidential power of intoxication in supporting such
defences and to the frequency and ease with which such defences could
be put forward."—Blackstone's Criminal Practice 1998 page
Criminal Law 2nd Edition (1978) writing about the law of Scotland
automatism, at page 78:
"It needs no reference to the High Court to establish that from
the point of view of mens rea conditions short of insanity do not
I find it
strange in the light of what is happening in South Africa where
reported cases of "sane automatism" since the case of R v
Chretien in 1981 are over twenty, in Scotland there was not a single
one still not overruled. It seems therefore that automatism had not
met with favour in Scotland by 1978. In HMA v Ritchie 1926 SLT 308
Lord Murray directed the accused to acquit a motorist who had run
over a pedestrian if it believes he had "temporary mental
dissociation due to toxic exhaust fumes". The jury believed the
accused and acquitted him. In the case of HMA v Cunningham 1963 SLT
345 the accused who had driven (under the influence of drugs)
recklessly colliding with another motor vehicle and pedestrians. He
raised the special defence of lack of responsibility on account of
incidence of temporary dissociation due to epileptic fugue or other
pathological condition. The High Court of Justiciary in its appellate
capacity, per Lord Justice-General Clyde at page 347 said of this
"For this I can see no warrant in principle. On the contrary as
has been pointed out more than once in previous cases such a novel
type of special defence would be a startling innovation which would
lead to serious consequences so far as safety of the public is
concerned.... It follows therefore, in my view that the case of HM
Advocate v Ritchie 1926 SLT 308, where an opposite view was taken by
Lord Murray sitting alone was wrongly decided. To affirm and even
extend, that decision would lead to laxity and confusion of our
criminal law which would do nothing but harm."
was in many respects similar to S v Chretien. It is significant that
in Scotland the attitude of the court was conditioned by
considerations "safety of the public" and avoidance of
"laxity and confusion in our criminal law" than what Rumpff
CJ called "legal purity".
to me both in England and in Scotland there is more concern for
safety of the public than academic pursuits such as "legal
purity" or making legal principles logical. That being the case
there is not much to recommend the "sane automatism" of the
type that is the offspring of 5 v Chretien. While there is automatism
in our law, it will continue to follow the lead of English law as
South Africa used to do. It might diverge, but it will do so as much
as possible as conditions in Lesotho permit. Sufficeth to say 5 v
Chretien and the sane automatism it has bred is not part of the law
referred to the case of Rex v Moteane CRI/T/5/97 (unreported) whose
judgment was delivered on the 8th day of May 2000 can be
distinguished. This case was decided as if South African law that
descended from S v Chretian was identical to the law of Lesotho.
Secondly in Rex v M Chobokoane CRI/T/90/99 two psychologists said
"sane automatism" of the type that was in R v Moteane would
have been classified as temporary insanity over fifty years ago. As
already stated, Lesotho follows what Snyman in Criminal Law 3 rd
Edition page 222 calls the "separate doctrine approach"
which South Africa abandoned prior to 1970. South African law follows
the "general principles approach" which south Africa
developed from S v Chretien which collides head-on with the Criminal
Liability of Intoxicated Persons Proclamation 60 of 1938 which in
terms of Section 2(2) treats dead drunk people as
insane. See Rex v Matšaba CIV/T/18/89 (unreported). In R v
Matšaba before Lehohla J expressly disapproved of R v
Chretien. The history of that case is the following: The accused
Tsitso Matšaba was a policeman and had due to stress developed
rash for which the drug phenergan was prescribed. He became addicted
to it and was taking higher doses than those originally prescribed.
He obtained this drug illegally as his rash was not cured. Phenergan
merely alleviated his discomfort.
to evidence of a pharmacist, phenergan makes the effect of alcohol
worse if accused takes phernegan along with alcohol. Accused had
drunk alcohol together with phernegan. He became so drunk that he did
not know what he had been doing. During his drunken black-out, the
accused shot and killed five people. It was accepted by all that
accused did not know what he was doing.
defence relied on 5 v Chretien in the mistaken belief that the law of
Lesotho on intoxication was the same as the law in South Africa. Mr
Mokhobo for the Crown showed the law was different. Because of
extreme intoxication, the accused should be dealt of Section 2(2) and
(3) of the Criminal Liability of Intoxicated Persons Proclamation 60
of 1938 read with Section 172(3) of the Criminal procedure and
Evidence Act of 1981 because of his temporary insanity induced by
alcohol potentiated (made worse) by the drug Phenergan. The effect of
this was that the accused was insane and would be committed to prison
pending the signification of the King's pleasure.
reviewing the evidence, Lehohla J in Rex v Tšitso Matšaba
(supra) dealt with the legal argument from counsel in particular S
vs. Christien 1981(1) SA 1097. Lehohla J quoted English cases in
support of the legal position in Lesotho and said the following:
/A.G. For N Ireland vs Gallagher (1961)3 All E.R. 299 at 304 Lord
Goddard after taking the view that evidence of self-imposed
drunkenness existed said
to admit that as a defence would be to allow self-imposed
intoxication to be set up as a defence of insanity, a proposition
which was emphatically negatived by its House in Director Public
Prosecutions vs Beard (1920) ALL E.R. 21.
with Lord Goddard, Lord Denning at 312 said:
"This seems to me to be far worse - and far more deserving of
condemnation - than the case of a man who, before getting drunk, has
no intention to kill, but afterwards in his cups, whilst drunk, kills
another by an act which he would not dream of doing when sober. Yet,
by the law of England, in the latter case his drunkenness is no
defence even though it has distorted his reason and his willpower."
governing criminal liability of intoxicated persons is to be found in
Proclamation 60 of 1939; Section 2(2) of which is in keeping with the
English authorities cited above."
and its judgment went to the Court of Appeal and its judgment was
confirmed in Matšaba v Rex 1991-96 LLR 615.
being the case, the case of Rex v Matšaba by my brother
Lehohla J is the one that I am bound to follow. It clearly
disapproves of S v Chretien and the jurisprudence it is based on.
of R v Mosuoe Moteane (supra) was heard at a time the 1960 Laws of
Basutoland are out of print. Miss Dlangamandla for the Crown said the
does not have these Laws of Basutoland 1960. Mr Mosito confirmed he
also has no personal copy of the Laws of Basutoland 1960. The High
Court library does not have Volume II of the Laws of Basutoland 1960.
Only a few judges' chambers have them. The Law Office, where the
Director of Public Prosecutions is situated only has the first
edition of Burchell and Hunt General Principles of Criminal Law
Volume I and Common Law Offences by Hunt Volume II of the South
African Criminal Law and Procedure 1970. At that time the case of S v
Chretien 1981 (1) SA 1097 had not been thought of. It will be
observed that psychologists in Rex v M Chobokoane CRIT/T/90/99
(unreported) for and against accused said "sane automatism"
was part of insanity not so long ago. Therefore it used to be called
temporary insanity. If accused is believed, then, according to the
law of Lesotho he in effect says he was temporarily insane. Legal
terms do not change as often as psychological terms do. In fact
(according to Dr Olivier in R v M Chobokoane) the term insanity is no
more used in psychology.
Counsel and Defence Counsel did not have the recent third Editions of
Snyman Criminal Law and Burchell General Principles of Criminal Law,
"sane automatism" which is a shift by South Africa from the
English law position that reached culmination point after 1970 was
unfamiliar. The Office of Attorney General has been warned before
against its failure to equip Crown Counsel with books and materials
for applying and developing the law of Lesotho. It was therefore
inevitable that since the Attorney General does not equip his office
with what Lesotho Law Reports which exist for the period between 1926
and 1996, such oversights as occurred in Rex v Mosuoe Moteane are
Lesotho's problems were not enough, two judges chambers (one of
Volumes of Laws of Basutoland 1960) were burnt during the 1998
political disturbances. In Volume II of Laws of Basutoland 1960 was
contained the Criminal Law Homicide Amendment Proclamation 45 of 1959
which changed Lesotho's direction. As already stated, our law of
provocation in homicide took a turn towards the English approach
after the case of R v Krull when the Criminal Law (Homicide
Amendment) Proclamation No.45 of 1959 was enacted. Consequently the
"sane automatism" which was bred by S v Chretien is not law
in Lesotho. Unfortunately the Law Office is not equipped to deal with
these current problems because it does not buy or preserve law books.
be no doubt that the accused had a grievance and a smouldering
resentment because he had been dismissed from the police force after
nine years' service. He was charged disciplinarily and found guilty
of tearing the picture of the Commissioner of Police and dismissed
from the police force as punishment. His appeal to the Police Board
of Appeal failed, and even his review application to the High Court
was unsuccessful. The Commissioner of Police accepted the
recommendation of the disciplinary panel and dismissed him from the
police force. This dismissal forms part of the case as background to
the killing of deceased and also as what the accused claims was the
trigger mechanism to the black-out he suffered when he saw the
deceased who was his commanding officer. Accused claims he had a
black-out and does not know how he came to kill the deceased.
accused says he went to the Prime Minister's public meeting (pitso).
There is no dispute that he had the right to attend that pitso. The
accused who had been an escort of important people and who had been a
policeman for nine years
the police regulate public meetings as a matter of law. See the
Internal Security (Public Meetings and Processions) Act of 1966. We
can expect that he knew that (as the Prime Minister is the most
important politician) the deceased Colonel Kholokholo the Officer
Commanding Butha Buthe district would be there. I do not believe the
accused when he says he did not expect to see anybody. Even so, I am
not entitled to assume that the accused went to the pitso with the
intention to find him and kill deceased. We will never know what was
in the mind of the accused.
accused claims when he saw the deceased, the deceased was 15 paces
from him. He went for his gun because he felt like shooting the
deceased. He got hold of the gun, as he got hold of it, everything
went blank - he had a black-out and only recovered at the charge
office under arrest. He does not know what he did or said. He heard
the police saying he has done this or that.
Sergeant Maime said that while he was talking to the deceased, he saw
the accused walking behind the deceased. Soon thereafter he heard two
gun reports. This took him by surprise, he then saw deceased fall.
Then saw the accused firing three times at deceased. As this was
happening, Sergeant Maime says he was very frightened. Sergeant Maime
says he then caught the accused from behind. A man he had never seen
before helped him hold the accused. The gun from the accused fell
down. Senior Superintendent of Police Tšilo took that gun. PW2
Senior Superintendent Tšilo confirms he saw deceased while he
himself was talking to a police officer known as Theko who was in a
landrover although PW3 Theko says he was dozing at that time. He saw
the accused coming behind the deceased, and then heard gun reports.
Then saw deceased fall. PW2 says he ran behind a landrover, when he
emerged, he saw accused firing at deceased a number of times while
was lying prostrate on the ground. PW1 grabbed the accused from
behind. He (PW2) ran to grab the gun from accused and handed it to
another policeman. Accused was grumbling and because people had
gathered making noise he did not hear what accused said. This
evidence is not disputed by the accused and it has to be accepted.
of PW1 seemed to be directed at what accused or deceased said during
or a little after the shooting. PW1 fared badly under
cross-examination because he was saying what he did not write in the
written report he made after the shooting. He also was saying what he
himself said: This was also not in that written report. I will return
to this aspect of PW1 (Sergeant Maime's) evidence.
put to Sergeant Maime that the accused will say when he fired at
deceased, he was not there. Sergeant Maime denies this. He also
denies that it was only the accused who was near the deceased (if
that is what deceased instructed his counsel). Sergeant Maime says
that he and the accused were the near the deceased at the time the
who was very near the deceased, says the accused said something and
he was not seriously challenged. Senior Inspector Theko (PW3) said he
had been sleeping or dozing in the vehicle in which he was sitting in
when he was woken by fire-works. Deceased was a metre from him.
Accused fired again at the deceased. He saw Sergeant Maime holding
the accused from the back restraining the accused and gripping the
accused firmly. Accused asked deceased what he was doing, killing a
person in this way. The accused replied "I am killing him, he
caused my expulsion from work". Accused added that justice had
not been done in his case.
Inspector Theko said he did not see Sergeant Maime earlier, nor did
he hear deceased say anything. PW4 Moferefere Senokoane says after
hearing three gun reports he rushed to the scene of (the shooting.
People had all run away. He saw a person who was later identified as
the accused firing. There was someone who seemed to have been the
first to arrest the accused. Some policemen in uniform came to help
them later. PW4 Moferefere Senikoane says he heard the accused say he
should not be treated badly, he would put his case where he was
going. "Ke tla bua pele". This portion of what PW4 said is
cross-examination however PW4 was challenged about what he said in
his evidence-in-chief to the effect that when they were in a police
vehicle, he asked accused why he had shot the deceased. Moferefere
PW4 insisted that was true, he does not understand why it does not
appear in his statement, which he made to te police. He insisted
accused had answered that the deceased had dismissed him from work.
If accused will say that is not true, it is the accused who is not
truthful, not him.
impressed by the two witnesses PW3 and PW4, they were not shaken in
cross examination. I note that PW2 claims he was speaking to PW3, but
PW3 says at that time he was dozing, but for the corroboration her
the evidence of PW5 on what the accused said to effect that he shot
the deceased for having dismissed from work. I conclude that she
might have heard that, but as I was not impressed by her demeanour
and her evidence in general, I would have not given it much credence.
to me like the first witness Sergeant Maime and PW5 became so scared
that a lot of things that she said are disjointed to the point of
being unreal. She must have received a slight shock or what Sergeant
Maime called a trauma. The sequence of events may be coming to her
slowly and hesitantly. Had they not between corroborated by people
who sought safety by either running away like PW2 or being inside in
the safety of a motor vehicle like PW3,I might have rejected the
evidence outright. I accept that PW1 and PW5 are telling the truth,
though what they say in view of their great fright and confusion
needs to be treated with caution.
that there was, according to PW5, the car of the Commissioner of
Police not far from where deceased was shot. In the absence of
evidence that the accused knew the Commissioner of Police would be
there, I cannot associate it with the accused's purpose for going to
the Prime Minister's pitso. I have also said the same about the
accused's attendance of the Prime Minister's pitso—the only
difference is that there was a great possibility that the deceased
would be there as the Chief Security Officer in the district.
claims he was most aggrieved for being dismissed from the police
force for being alleged to have torn a paper which had a picture of
the Commissioner of Police. He had just heard from his attorney Mr
Khasipe that his application for a review of proceedings of the
disciplinary panel and the Appeals Board of the police force had been
dismissed. He saw his future as bleak and his children to be going to
miss their education. He claims he was innocent of the commission of
the offence for which he had been convicted. He went through a
forest, by a short cut. He went towards the back of the Prime
Minister's tent. He forgets whether this was condoned off with a
yellow tape to exclude the public as a security area should. Accused
(Colonel Kholokholo) whom he was blaming for his expulsion from the
police force. All his troubles came to him in an instant, he became
very angry when he saw the deceased.
from the nature of questions put by his Counsel and what he was going
to say, reveal that he knew that deceased was alone when he (to use
his words he felt like shooting him. He put his hand on his pistol
which was on his left hand, in its upholster. (He even made a
demonstration). Just as he was about to draw it he had a black out.
Yet he remembers what he said (from the nature of questions his
Counsel put to witnesses - during the black out. Accused was asked
whether those were in fact his instructions to his Counsel, the
accused said yes. During addresses I asked his Counsel (Mr Mosito)
whether he knew if in asking questions to a witness which are not
based on accused instructions but merely to test the credibility of a
witness, he should suggest to the witness rather than put statements;
the accused's counsel said he knew. If accused knew what he said or
did not say then accused had no black out.
said he had had a fair trial and he did not blame Colonel Ntlama who
presided over the hearing of the case. When asked why he did not go
for him - after changing what he had said to having had an unfair
trial, accused said he did not really think about those who tried
him. Had he done so he probably would have blamed Colonel Ntlama as
he recommended his dismissal to the Commissioner of Police. Deceased
only made a supporting recommendation or a recommendation that he
should be dismissed. Deceased's recommendation would not be binding.
It was entirely up to the Commissioner of Police to decide whether or
not he should be dismissed.
(after his disciplinary case) bad gone to the deceased in order to
ask deceased to make a recommendation in his favour so that he should
not be dismissed on the recommendation of Colonel Ntlama and the
disciplinary panel. Deceased told accused, after asking for pardon,
that he was powerless. Perhaps Colonel Ntlama, the Chairman of the
disciplinary panel might help if accused approached him. When accused
got to Colonel Ntlama, he was told the decision had been reached by
those in authority. This could mean either the deceased or one who is
even more senior (according to the interpreter). Counsel for the
accused said accused the correct interpretation was that the decision
was reached by the deceased. Deceased told the accused that he had no
power to reverse that decision. According to the accused, he knew it
was the Commissioner who made the decision, but he made the decision
on the recommendation of the District Commander (meaning the
the facts, accused said he had just relieved another group of
policemen. They had told him everything was in order and he took over
together with his group. Accused had gone to make a 'phone call when
he discovered the Commissioner of Police's picture torn. He went to
ask policewoman if she knew who had torn that paper. Police woman
Thakheli left the police station as fast as her feet could carry her,
saying she was doing so because she was prone to getting into
trouble. Therefore, she was going away. Accused said he was not going
anywhere, whatever happens to him should do so while he was on duty.
He reported the matter to his imediate superior who passed it on
through the proper channels. Accused gave the impression that he was
victimised for having the courage to report the incident.
accused in his confession, before the magistrate, had said the
deceased was among the people who had caused his dismissal. He had
shot deceased at the
because his heart went black when he saw deceased. Counsel said this
meant the accused had a black-out. The interpreter and the court were
of the opinion that when someone's heart became black is when he
becomes very angry or very depressed. Both counsel and the court have
Sesotho as their first language (mother tongue).
the end of his cross-examination, accused revealed the policewoman
Thakheli had decided to run away because a policeman who had been
found guilty of tearing a picture of the Commissioner of Police in
Leribe had just been dismissed from the police force. It is clear
from the start that even before the case started, accused knew that
if he was found guilty he would not be allowed to remain in the
police force. Tearing a picture of the Commissioner of Police was a
very serious offence at that time. That was why it was presided over
by an officer who commanded another district of the rank of
Lieutenant Colonel. Accused had been telling a lie when he said
deceased was responsible for his expulsion. Before the magistrate, in
a confession, he said deceased was among those responsible for his
dismissal. This I accept as the truth.
black out was very unconvincing, he was in many respects an untrue
witness, not only his answers betrayed this, his demeanor was also
unsatisfactory. What was really his grievance was being dismissed
from the police force for being alleged to have torn a paper on which
there was a picture of the Commissioner of police. When he saw the
deceased, he had the urge to shoot him, went to the deceased and shot
him. He was asked why, in answer he said justice had not been done,
accused had caused him to be expelled from work. This was something
he was aware was not true, because in his confession, he says
among those people. As the Commissioner of Police had a car parked
nearby, accused might have shot him too if he came to the view of the
accused. He got deceased and shot him to make a point against the
police system. He wanted to be heard in some other forum, and
consequently asked those who wanted to assault him not to do so.
We do not
believe that having formed the intention to kill and got hold of his
gun he could suddenly have a black-out as he claims he did. Accused
is a former policeman, one would expect him to be aware that
something which amounts to an impairment of his bodily function has
to be backed up by medical evidence unless there are many people who
can give circumstantial evidence as to the dysfunctioning of his
body. On this black-out, to quote from Marais J in s v Trickett
1973(3) SA 526 in case of a black out, he said:
"On neither point is there any expert evidence at all, and for a
lay court to speculate on medical issue without medical expert
evidence is wholly pointless if not dangerous."
In S v
Cunningham 1996(1) SACR 631 at 636 B Scott JA said:
"It follows that in most cases (if not in all cases) medical
evidence of an expert nature will be necessary to lay a factual
foundation for the defence and to displace the inference above."
inference is that "the state is assisted by a natural inference
that (in the absence of exceptional circumstances) a sane person who
engages in conduct which would ordinarily give rise to criminal
liability does so consciously and voluntarily".— S v
Cunningham at page 635 J. There is no medical evidence whatsoever nor
of a circumstantial nature to support the allegation that accused had
a blackout. Not even his confession before a magistrate reveals that
such a black out occurred. It supports only the inference that he
became very angry. Smith & Hogan Criminal Law 7th Edition (1992)
says at page 40, in English law where an act is alleged to be
involuntarily "Lord Denning has said that the accused's own word
will rarely be sufficient, unless it is supported by medical
evidence". In this case before me, the accused wants me to
accept his word on a black out when he is in our view a clearly
untruthful witness in many respects.
concluded that the accused had no mental blackout, the next point to
determine is whether the accused had the requisite intention to kill.
In determining this we have to decide whether the accused had the
subjective to kill. See S v Sigwahla 1967(4) SA 566.
himself says in his anger he had the desire to shoot the deceased and
put his hand on his pistol. We have found as a fact that he went to
the deceased and shot him. He did not normally carry his gun cocked.
He lied on this point. No reasonable person would do so. He must have
shot the deceased as he wished or felt like doing. Therefore we have
come to the conclusion that the accused had the subjective intention
to kill deceased. He did so to demonstrate his anger against deceased
as representative of the police force who was immediately available.
If the Commissioner of Police had been near his car, he might have
been also shot.
decided that the accused had he intention to kill, the next issue
(though tautologous) is whether there was provocation within the
meaning of the Criminal Law (Homicide Amendment) Proclamation 42 of
1959. Section 3(1)(a) of that
kills another under circumstances which but for the provisions of
this section would constitute murder; and
the act which causes death in the heat of passion caused by sudden
provocation as hereinafter defined and before there is a time for
his passion to cool,is guilty of culpable homicide only."
4(b) of this Proclamation obliges the court in judging the situation
to take into account the class of the community to which the accused
belongs. Sub-section (d) and(f) in defining provocation states that a
person performing his lawful duty cannot by so doing be deemed to
have provoked anybody. Even the act of a policeman who unlawfully
effects an arrest cannot be ordinarily be regarded as provocation.
were appropriate in this case, I would observe that loss of temper
(sometimes causes a temporary loss of mastery of the mind) this is a
common feature in provocation—See the case of R v Whitfield
(1976) 63 Crim App Reports 39. In fact Lord Goddard CJ in R v Duffy
 1 All ER 932 E F endorsed the following definition of
provocation in murder:-
"Provocation is some act, or series of acts, done by the dead
man to the accused which would cause in any reasonable person, and
actually causes in the accused, a sudden and temporary loss of
control, rendering the accused, a sudden and temporary loss of self
control, rendering the accused so subject to passion as to make him
or her for the moment not master of his mind. Let me distinguish for
you some of the things which provocation in law is not. Circumstances
which merely predispose to a violent act are not enough. Severe
nervous exasperation or a long cause of conduct causing suffering and
by themselves sufficient to constitute provocation in law."
had done nothing that had suddenly provoked the accused. He was going
about his lawful duty of maintaining security at the Prime Minister's
pitso. Even if he had, accused should have had a lot of time to cool
down when he left the Butha Buthe magistrates' court to go and tell
his wife about the failure of his application for review in the High
Court. Accused also had time to cool while walking from his home to
the Prime Minister's pitso. I have already found it as a fact that
accused did not believe that deceased had in any way caused his
expulsion from the police force. He and policewoman Thakheli knew of
a similar expulsion of a policeman, when the picture of the
Commissioner of police was found torn. A policeman in Leribe, who was
found guilty of a similar offence, had just been expelled from the
light of the aforegoing, accused had not been provoked by the
deceased in any way. Smouldering anger is not provocation, although
it is taken into account for other purposes.
accused. We find you guilty of Murder as charged in Count I.
also guilty as charged in respect of Count II for possessing an
unlicensed fire-arm and contravening Section 3(a) of the Internal
Security (Arms & Ammunition) Act of 1966 by not renewing the
licence for your pistol.
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